STJ decides that the use of a competitor's trademark as a keyword in advertisements characterizes a crime of unfair competition
Advertising through paid media is a primary source of customer prospecting in the digital market. It happens that some companies, when hiring advertising platforms, choose to use the brand of others as a keyword to better position their ad. The result of this is that the consumer, when searching for brand "A", already consolidated in a certain market niche, will have as the first result the ad made by brand "B", even before brand "A" itself.
As a result, in the recent judgment of Special Appeal 1.937.989/SP, the Superior Court of Justice unanimously decided that indexing a sponsored ad to a competitor's trademark characterizes, in and of itself, the crime of unfair competition provided for in clauses III and V of art. 195 of the Industrial Property Law. According to Justice Luis Felipe Salomão, unfair competition exists when the capture of clientele is done by trickery, such as the use of a third party's trademark as a keyword in sponsored links. This practice produces evident dilution of the trademark and, consequently, loss of prominence and damage to the company's advertising.
Notwithstanding the absence of express legal prohibition, the judgment of REsp 1.937.989/SP shows a tendency of the STJ in identifying the limitations of free enterprise within the digital world, repressing conducts that promote confusion or undue association to third parties' trademarks.
The trademark registration guarantees its holder the exclusive use throughout the national territory, being assured the right to care for its material integrity or reputation. Therefore, to prevent the trademark from being diluted in the economic market, it is important to check with search engines - especially Google - to see if undue indexing of your trademark by a competitor is occurring. If such an act is verified, it can be characterized as unfair competition, giving the owner of the injured trademark the possibility to act to stop the infringing conduct, as well as seek compensation for the resulting losses.
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